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CACV 145/2019
[2019] HKCA 722
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 145 OF 2019
(ON APPEAL FROM HCAL NO 1451 OF 2018)
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BETWEEN
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Faruk Md Omr
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Applicant
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and
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
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Putative Respondent
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and
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Director of Immigration
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Putative Interested Party
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Before: Hon Kwan VP and Pang JA
Date of Judgment: 28 June 2019
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J U D G M E N T
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Hon Kwan VP (giving the Judgment of the Court):
1. This is the applicant’s appeal against the decision of Deputy High Court Judge K. W. Lung on 15 March 2019. By his decision, the judge refused the applicant’s application for leave to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim.
2. The applicant is a national of Bangladesh who arrived in Hong Kong illegally on 14 February 2016. He lodged a non-refoulement claim on 14 March 2016 on the basis that if he were returned to Bangladesh he would be harmed or killed by Arif and Awami League (“AL”) people as he refused to quit Bangladesh Nationalist Party (“BNP”) to join AL.
The Director’s decision
3. By a Notice of Decision dated 9 February 2017, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4]. The Director assessed that the risk of harm upon the applicant’s return is low and the availability of state protection and internal relocation alternatives further lowers or negates the level of risk.
The Board’s decision
4. The applicant appealed to the Board against the Director’s decision. An oral hearing was held on 24 April 2018. The Board did not accept the applicant’s claim as there were a number of discrepancies in the applicant’s evidence given to the Director and to the Board for which he was unable to explain. The Board decided that the applicant failed to substantiate his claim on all applicable grounds and rejected the appeal accordingly on 13 July 2018.
The intended application for judicial review
5. The applicant filed a Form 86 and an affirmation on 24 July 2018 to seek leave to apply for judicial review against the decision of the Board on the grounds that he did not have legal representation or legal assistance for the appeal, the hearing bundle was given to him shortly before the hearing without translation, the Board relied upon the source of news which was hearsay or not officially recognized, BOR 2 risk was assessed without screening, and the Director and the Board reached a wrong decision because they had not done proper enquiry into the situation.
The judge’s decision
6. At the hearing before the Judge, the applicant confirmed that he had a fair hearing before the adjudicator and a friend had explained the contents of the hearing bundle to him. He also had the benefit of legal representation in presenting his case to the Director and the judge found nothing amiss arising from lack of legal representation in the process before the Board. Having considered the applicant’s grounds, the judge decided that the applicant has no reasonable chance of success in the intended application for judicial review and refused the leave application on 15 March 2019.
The grounds of appeal
7. The applicant filed a Notice of Appeal against the decision of the judge on 25 March 2019 and stated the following as his single ground of appeal:
“In the matter of Order 53 rule 3, I Faruk Md Omr want to appeal again for to see my case in your honour’s court.”
Non-compliance with unless order
8. The appeal was scheduled to be heard on 25 June 2019. Directions were given by the Registrar of Civil Appeals on 12 April 2019 for the applicant to lodge skeleton argument not less than 28 days before the hearing of the appeal. The directions provided that in the event the applicant fails to lodge skeleton argument in accordance with the directions, he shall be deemed to waive his right to have an oral hearing for his appeal and elect to have his appeal disposed of on paper.
9. The applicant failed to lodge skeleton argument not less than 28 days before the hearing of the appeal (ie on or before 28 May 2019). As the unless order of the Registrar was not complied with, the hearing date of the appeal has been vacated. By letter dated 4 June 2019, the court informed the applicant that the hearing date of his appeal has been vacated and his appeal will be dealt with on paper by the Court of Appeal.
Legal Principles
10. The general principles concerning an appeal in a non‑refoulement case have been stated comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14 and are as follows.
11. The role of the court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non-refoulement cases the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the court should not usurp the role of the Board. Assessment of evidence and Country of Origin Information (“COI”) materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.
12. An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge. In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.
13. In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge, the appeal should be dismissed. It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.
Disposition
14. As the applicant has not put forward any viable ground in his notice of appeal, we therefore dismiss his appeal.
| (Susan Kwan) |
(Derek Pang) |
| Vice President |
Justice of Appeal
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The Applicant (Appellant), acting in person
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of being arbitrarily deprived of his life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] This refers to the risk of persecution with reference to the non‑refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees.
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